Fla. Siting Bd., 693 So. 2d 1025, 1028 (Fla. 1st DCA 1997). Evidentiary
rulings are matters within the ALJ's sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.
Also, the ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). An agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994).
Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). An agency's review of legal conclusions in a recommended order, are restricted to those that concern matters within the agency's field of expertise. See, e.g., Charlotte County v. IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); G.E.L. Corp. v. Dep't of Envtl. Prof., 875 So. 2d 1257, 1264 (Fla. 5th DCA 2004).
If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th DCA 1993). However, neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of Prof'/ Eng'rs, 952 So. 2d 1224 (Fla. 1st DCA 2007).
An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla. 1985); Fla. Public Employee Council 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned un.less "clearly erroneous." See, e.g., Collier County Bd. of County Comm'rs v. Fish & Wildlife Conservation Comm'n, 993 So. 2d 69 (Fla. 2d DCA 2008); Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Go/dring, 477 So. 2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible"
ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prof., 668 So. 2d 209, 212 (Fla. 1st DCA 1996).
Based on Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code, the Governing Board has the administrative authority and substantive expertise to exercise regulatory jurisdiction over the administration and enforcement of ERP Criteria. Therefore, the Governing Board has substantive jurisdiction over the ALJ's conclusions of law and interpretations of administrative rules, and is authorized to reject or modify the ALJ's conclusions or interpretations if it determines that its conclusions or interpretations are "as or more reasonable" than the conclusions or interpretations made by the ALJ.
RULINGS ON EXCEPTIONS
The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envt/. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003).
In reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception." See
§120.57(1)(k), Fla. Stat. (2010). However, the agency need not rule on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.
Petitioner's Summary of Exceptions and Overview of Project
Petitioner's Exceptions include sections entitled "Summary of Petitioner's Exceptions" and "Overview of Petitioner's Project" which are not in proper form for exceptions. Pursuant to §120.57(1)(k), Florida Statutes, "an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the l gal basis. for the exception, or that does not include appropriate and specific citations to the record."
Nonetheless, it should be noted that these sections of Petitioner's Exceptions are nothing more than an attempt to reargue its case. Much of Petitioner's argument relies on facts not found by the ALJ. Therefore, it appears that Petitioner is asking the Governing Board to make additional findings of fact in order to accept their argument, which the Governing Board is not permitted to do.
Petitioner's Exception No. 1
Petitioner takes exception to Findings of Fact Nos. 58, 59 and Conclusions of Law Nos. 90, 92 - 95, 98 and 102 wherein the ALJ addressed the issue of impacts to seagrasses and other submerged resources from boats using slips 6 - 24 of the proposed marina. Petitioner argues that these findings and conclusions are speculative and not based upon competent, substantial evidence. The ALJ found that there are seagrasses growing in the vicinity of Petitioner's Charlotte Harbor shoreline, that healthy turtle grass beds are growing near the proposed marina structures in Charlotte Harbor, that the "persuasive evidence" is that mature turtle grass is 18 inches in length, that boats using slips 6 - 24 would have maximum drafts of five feet, and that seagrasses to the east of the entrance of the proposed marina are subject to disturbance from boats entering and leaving the marina. See, Findings of Fact Nos. 13, 39, 55. Petitioner did not take exception to thes Findings of Fact. Petitioner's own Exhibit 26 (sheet 5/21) indicates that the depth of seagrasses to the southeast of the entrance to the enclosure for slips 6 - 24 is approximately 6 to 6 ½ feet. Therefore, it is reasonable to conclude that boats from slips 6 - 24 with a 5 foot draft entering and exiting over seagrasses in the area that are 1 to 1 ½ feet in length would directly impact these seagrasses, violating the requirement for a minimum of 1 foot of clearance required by Rule 18-20.004(5)(b)8, Fla. Administrative Code. Furthermore, there is evidence in the record to support the challenged findings. See, Transcript at 272, 278, 285 - 287, 307, 310 - 312,
315, 395 - 397, 416, 427 -428, 501, 508 - 510, 527 - 528. The weight to be
given to evidence and the credibility of witnesses is a matter solely within the purview of the ALJ.
Petitioner also takes exception to Finding of Fact No. 61 wherein the ALJ found that, for a number of reasons, the proposed project would likely reduce the risk of damage to seagrasses and other submerged resources in Back Bay. Since the entire argument made by Petitioner in Exception No. 1 relates to slips 6
- 24 in the Charlotte Harbor marina, they have failed to clearly explain the nature of the exception to Finding of Fact No. 61.
For the reasons set forth herein, Exception No. 1 is denied.
Petitioner's Exception No. 2
Petitioner states that they take exception "to the findings that boats using slips 6 - 24 would sometimes impact [sic] and other submerged resources in the area of the access channel" without specifically indicating which Findings of Fact or Conclusions of Law this exception refers to. It appears that this statement is nothing more than a reiteration of Exception No. 1 and as such is denied for the reasons stated therein.
In addition, Petitioner uses Exception No. 2 to make a new proposal to reduce the draft of boats docking at slips 6 - 24 from 5 feet to 42 inches in order to meet the criteria in Rule 18-20.004(5)(b)8, Florida Administrative Code, which requires a minimum of 1 foot clearance over submerged resources at mean or ordinary low water. See, Conclusion of Law No. 95. This new proposal was not
litigated at the administrative hearing before the ALJ. District staff and the lntervenors were not given an opportunity to submit evidence regarding this proposal. Such a proposal is not an exception to the ALJ's Recommended Order. It is an attempt to reopen the record of the administrative hearing and ask the Governing Board to make additional findings of fact and conclusions of law contrary to the evidence adduced at hearing, something the Governing Board is without authority to do. However, there is nothing that would preclude the Applicant from reapplying for an ERP with this new information.
For the reasons set forth herein, Exception No. 2 is denied.
Petitioner's Exception No. 3
Petitioner takes exception to Findings of Fact No. 60 and 68 wherein the ALJ found that Petitioner did not adequately demonstrate that shading from the proposed structures would not adversely affect seagrasses. Petitioner argues that this finding is speculative and not based upon competent, substantial evidence despite testimony from Melinda Parrott on the subject. See, Transcript at 316 - 317. Ms. Parrott was tendered and accepted as an expert in marine biology and environmental impact analysis without objection from Petitioner. See, Transcript at 307. Although the ALJ clearly had competent, substantial evidence to support the findings of fact regarding the impact from shading on the seagrasses, Petitioner fails to note that Finding of Fact No. 60 actually found that
Petitioner failed to adequately demonstrate that shading would not adversely affect seagrasses. As explained by the ALJ in Conclusion of Law No. 88, "[a]
permit applicant has the burden to show entitlement to the permit by preponderance of the evidence." (citing to Fla. Dep't of Transp. v. J.WC. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981)). Petitioner does not point to any evidence they presented regarding the impact of shading on seagrasses.
For the reasons stated herein, Exception No. 3 is denied.
Petitioner's Exception No. 4
Petitioner takes exception to Findings of Fact Nos. 66, 68 and Conclusion of Law 92 wherein the ALJ addressed the issue of impacts to manatees foraging in seagrasses from boats using slips 6 - 24 of the proposed marina. Petitioner argues that these findings and conclusions are speculative and not based upon competent, substantial evidence. The ALJ found that manatees, a listed species are known to forage and move in the area near Petitioner's Charlotte Harbor shoreline and Back Bay, that seagrasses are a primary food of manatees, that an adverse impact to &eagrasses is an adverse impact to manatees, that larger boats are generally more lethal in collisions with manatees, and that slips 6 - 24 would accommodate boats of greater size that would have used the slips that would be eliminated in Back Bay. See, Finding of Fact No. 17, 54, 65, 66. Petitioner did not take exception to these Findings of Fact. Petitioner's exceptions to the ALJ's findings regarding seagrasses are analyzed in Exceptions Nos. 1 and 3 above and are found to be erroneous. Therefore, it is reasonable to conclude that the larger boats that would use slips 6 - 24 coupled with the existence of seagrass in and around the project area may result in
adverse impacts to manatees. Furthermore, there is evidence in the record to support the challenged findings. See, Transcript at 445 - 457, 546. The weight to be given to evidence and the credibility of witnesses is a matter solely within the purview of the ALJ.
For the reasons stated herein, Exception No. 4 is denied.
Petitioner's Exception No. 5
Petitioner takes exception to Conclusions of Law Nos. 90, 92 - 95, 98 and 102 w_herein the ALJ concluded that the Applicant did not provide reasonable assurances that the conditions for issuance of an ERP, including specific criteria established for activities in aquatic preserves, were met. Since exception to each of these conclusions of law has been raised in Petitioner's Exception Nos. 1, 3 and 4, reference is made to the discussion of each of those exceptions above. Furthermore, the ALJ accurately set forth the applicable criteria and therefore, no basis exists for altering those conclusions of law.
For the reasons stated herein and in the discussion of Exception Nos. 1, 3 and 4 above, Exception No. 5 is denied.
Petitioner's Exception No. 6
Petitioner's Exception No. 6 does no more than ask the Governing Board to change the ALJ's Recommendation. Petitioner has not identified any basis for the Governing Board to do so.
For the reasons stated above, Exception No. 6 is denied.
CONCLUSION
Having reviewed the Recommended Order, the exceptions and responses thereto, and considered the applicable law and being otherwise duly advised, it is ORDERED that:
Petitioner's exceptions are denied for the reasons set forth above.
The Recommended Order (Exhibit A) is adopted in its entirety and incorporated herein by reference.
A Notice of Rights is attached as Exhibit B.
